Devoid v. Clair Buick Cadillac, Inc.

LIPEZ, Justice,

dissenting.

I respectfully dissent. By affirming the trial court’s decision, the Court ratifies an erroneous construction of the Whistleblow-ers’ Protection Act that needlessly undermines the Act’s protective purpose.

The record reveals that Devoid’s protest to his employer about the propriety of the down payment transaction and his refusal to issue the check were contemporaneous. Both the protest and refusal took place within the context of a single, uninterrupted conversation late on a Friday afternoon. Devoid was discharged on the following Monday, within two working hours of that conversation.

Despite the contemporaneity of the report and refusal, the trial court found that “the close temporal proximity between Devoid’s refusal to issue the check and his discharge leads to the conclusion that he was fired for refusing to issue the check.” On the basis of temporal proximity to the discharge, there is no meaningful distinction between the report by Devoid of the perceived illegality and his refusal to issue the check. Implicit in the trial court’s factual finding is the legal error that the Whistleblowers’ Protection Act required a finding of a single cause of the discharge. That is simply not so. The four provisions of 26 M.R.S.A. § 833(1) protect four different types of conduct by the employee.1 A finding that Devoid’s conduct did not meet the requirements of paragraph D (the refusal provision) did not preclude a finding that his conduct met the requirements of paragraph A (the reporting provision). On this record, given the trial court’s reliance on temporal proximity between the Friday confrontation and the Monday discharge, the trial court was compelled to find that the report was as much a cause of *752Devoid’s discharge as the refusal, and he was thus protected by section 833(1)(A).2

I would vacate the judgment of the Superi- or Court on count I and remand for a determination of the reasonableness of Devoid’s concern about the legality of the down payment transaction.

. § 833. Discrimination against certain employees prohibited

1. Discrimination prohibited. No employer may discharge, threaten or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because:
A. The employee, acting in good faith, or a person acting on behalf of the employee, reports orally or in writing to the employer or a public body what the employee has reasonable cause to believe is a violation of a law or rule adopted under the laws of this State, a political subdivision of this State or the United States;
B. The employee, acting in good faith, or a person acting on behalf of the employee, reports to the employer or a public body, orally or in writing, what the employee has reasonable cause to believe is a condition or practice that would put at risk the health or safety of that employee or any other individual;
C. The employee is requested to participate in an investigation, hearing or inquiry held by that public body, or in a court action; or
D. The employee acting in good faith, has refused to carry out a directive that would expose the employee or any individual to a condition that would result in serious injury or death, after having sought and been unable to obtain a correction of the dangerous condition from the employer.

. As the Court indicates, Devoid reported to his employer what he believed were three violations of law between mid-December 1990 and January 18, 1991. The trial court described these three transactions by the names of the parties involved in the transaction: "Guy Desrosiers,” “Fred Marsters,” and "Mahoney sales transaction.” The Mahoney sales transaction involved the down payment on a car purchase to be financed by Key Bank. The trial court found "no credible evidence of any adverse action against Devoid for reporting his concerns about the Desrosiers or Marsters checks.” Significantly, the trial court made no such finding about the absence of an adverse relationship between Devoid's report of a concern about the Mahoney sales transaction and his discharge. The Court is speculating when it states that the trial court's determination that Devoid was fired for refusing to issue a check in the Mahoney transaction “was apparently based in part on the court’s finding that Devoid suffered no adverse consequences from his first two reports concerning violations of law.” The trial court's detailed findings of fact include no such finding.